It is helpful to know some of the defenses to a premises liability lawsuit so that you and your attorney can plan around what arguments may be raised by the other side. Some of the most common defenses are assumption of the risk, contributory negligence, and comparative negligence.

Assumption of the risk is a defense that essentially says that the injured party knew of the risk when the accident occurred and accepted it. Assumption of the risk can be express or implied; express is typically in a contract or waiver where it is written and the other party signs to agree to take on the risk, while implied is voluntarily taking on the risk based on your own conduct or your oral statements acknowledging it. Typically with expressed assumption of the risk, you cannot sue them for negligence since it was expressly acknowledged in writing that you would still engage in whatever action brought you to the risk. There are ways around it though, if the contract violates public policy, attempted to cover intentional acts, or you did not have the capacity to understand the contract’s terms and agreement (mentally ill persons or minors).

Contributory negligence is another type of defense which is where the defendant says that the plaintiff contributed to their own injuries and the accident’s occurrence. In states that make this defense available, the plaintiff would not be able to recover any damages if they were found to be contributorily negligent. Illinois does not follow this rule; they follow comparative negligence, just like most of the rest of the states.

Comparative negligence is a less absolute type of defense, where the defendant may claim that the plaintiff was partially at fault for their own injuries. The jury or judge may find that the plaintiff is only a certain percentage liable for their injuries. The plaintiff will only be able to recover the percentage of the total amount of damages that they were not found liable for. If the total damages were $10,000, and the plaintiff was found 30% liable, they will only be able to recover $7,000 of their total damages. Illinois follows the modified comparative negligence system, which means that if the plaintiff is found more than 51% responsible for the accident (over the majority), they will automatically be found guilty and unable to recover any damages while the defendant is found not guilty.

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